What a dispute over a Native American worship site means for U.S. religious liberty
Caroline Molloy“Arbitrary government interference.”
That’s what the Knights of Columbus warned will befall religious believers in the U.S. if a copper mining company is allowed to take possession of, and destroy, a centuries-old Native American worship site in Arizona.
That site, Oak Flat, has been the subject of years of dispute and litigation, with a coalition group of activists known as Apache Stronghold leading an effort to prevent the government from surrendering the ancient religious location to private interests.
For decades the federal government protected the parcel from development in the Tonto National Forest. But the Obama administration in 2014 began the process of transferring the land to the multinational Resolution Copper, whose mining operations will dig a massive pit at the site and end its status as a center of worship.
The Native American activists have drawn support from a wide variety of religious advocates and stakeholders in the U.S., including the U.S. Conference of Catholic Bishops (USCCB) and the Knights of Columbus.
Apache Stronghold lost its bid at the Supreme Court earlier this year to halt the sale. This month, as part of a different legal challenge, the U.S. Court of Appeals for the 9th Circuit paused the sale just hours before it was to take effect, giving Native advocates likely their last chance to head off the destruction of the site.
Religious Freedom Restoration Act weakened
At issue in the main legal dispute is the Religious Freedom Restoration Act (RFRA), a Clinton-era law that restricts how and under what conditions the U.S. government can impose burdens upon U.S. religious liberty.
RFRA states that laws “shall not substantially burden” an individual’s religion, ordering that the government must have both a compelling interest in burdening a religion and must achieve it via the least restrictive means.
Joe Davis, an attorney with the religious liberty legal group Becket, told CNA that the law is what’s known as a “super statute,” one that “applies to all federal law and all federal actions under the law.”
Becket has supported Apache Stronghold in its effort to halt the sale of the site. Davis said that Congress in passing RFRA aimed to ensure that “before the government really does anything, it’s supposed to think about the effects and implications on religion and religious practitioners.”
“RFRA doesn’t actually stop the government from doing anything,” he said. “It just requires them to have a really good reason to do it.”
Prior to the Supreme Court’s rejection of the Apache Stronghold case, a lower court had decided that though RFRA generally prohibits the government’s “substantial burdening” of religion, that guidance does not apply in cases of “disposition of government real property,” as is the case with the Oak Flat parcel.
